Untimely amicus curiae brief rejected

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The Seventh Circuit has long been the most notoriously hostile circuit in the country when it comes to amicus curiae briefs; other courts have called its criteria “reflexively negative” and said it “makes no sense.”

So, you definitely don’t want to file an untimely brief.

But, apparently, the court has been receiving more untimely briefs than it wishes, prompting an Aug. 12 chambers opinion by Judge Frank H. Easterbrook, published to “explain for the bar’s benefit why I deem the request untimely.”

The court had issued its opinion in Fry v. Exelon Corporation Cash Balance Pension Plan on July 2, and on July 15, a petition for rehearing en banc was filed by Fry. Eight days later, AARP and the Pension Rights Center (PRC) sought leave to file a brief as amici curiae in support of the petition.

Both the amicus request and the motion for rehearing were denied. AARP and PRC then filed a motion to reconsider its request, triggering the published denial.

The opinion notes that under Fed. R. App. P. 29(e), an amicus curiae must file its brief, and a motion for filing, “no later than 7 days after the principal brief of the party being supported is filed.”

Pursuant to Rule 26(a)(2), weekends and holidays are excluded from the count (until Dec. 1, 2009, when amendments to Rule 26 will change that to calendar days, rather than working days).

AARP and PRC argued that Fry’s petition for rehearing en banc constituted a “principal brief” under the Rule, and thus, its motion was timely, but Easterbrook disagreed: “It would be unsound to treat the phrase ‘principal brief’ in Rule 29(e) to refer to a document other than the opening brief on the merits.”

Easterbrook went on to explain the burden it would place on the court to treat a motion for rehearing as a brief. Noting that the judges on the court vote within 10 days of a party’s motion for rehearing, he explained, “It would not be possible to act on this schedule if the court always had to wait at least 9 days after the petition’s filing to see whether an amicus brief would be tendered.”

Easterbrook added that the seven-day deadline is intended to save the court’s time, because amici can eliminate redundant arguments.

“The extra 7 days permit a potential amicus to avoid repeating arguments that appear in the principal briefs. This conserves judicial time. Allowing an amicus brief to be filed 7 or more days after a petition for rehearing, by contrast, would squander judicial time,” Easterbrook explained.